Calcutta High Court
M/S. Sany Heavy Industry India Pvt.Ltd vs Armugam Selvam And Anr on 2 January, 2025
Author: Shampa Sarkar
Bench: Shampa Sarkar
OCD-11
ORDER SHEET
AP-COM/769/2024
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL DIVISION
ORIGINAL SIDE
M/S. SANY HEAVY INDUSTRY INDIA PVT.LTD.
VS
ARMUGAM SELVAM AND ANR.
BEFORE:
The Hon'ble JUSTICE SHAMPA SARKAR
Date: 2nd December, 2025.
Appearance:
Mr. SaptakSanyal, Adv.
Mr. SubhasisPyne, Adv.
...for the petitioner
The Court:This is an application under Section 11 of the Arbitration
and Conciliation Act, 1996. Affidavit of service filed in Court is taken on record.
The postal receipts downloaded from the website of India Post indicate that
respondents have refused service. Refusal is good service. Hence the matter
proceeds ex parte. The application has been filed by the assignee of the loan account of the respondent No.1. The respondents had executed the loan-cum- hypothecation agreement with Srei Equipment Finance Limited on August 31, 2020.By way of a settlement agreement dated September 30, 2021, such loan account was assigned to the petitioner. The respondents failed to pay the loan amount and allegedly a demand notice was issued on January 30, 2024 by the petitioner company. Another demand notice was issued on March 11, 2024. It is submitted that the assignment was a part of the terms and conditions of the 2 agreement entered into between the respondents and Srei Equipment Finance Limited. Clause 23 of the agreement contains an arbitration clause. The said clause provides that any dispute and/or difference arising out of, concerning or touching upon the agreement at any point of time would be decided in accordance with the provisions of the Arbitration and Conciliation Act, 1996 read with the amendment act, 2015, by a sole arbitrator to be appointed by the company. According to the petitioner, the provision of unilateral appointment of an arbitrator is no longer valid in view of the various decisions of the Hon'ble Apex Court and thus this Court has been approached after the notice invoking arbitration was received by the respondent.The respondent failed to respond to the same within the stipulated period of 30 days from receipt thereof. Learned advocate for the petitioner points out to the documents in the supplementary affidavit in support of such contention. It is also submitted that the agreement contains the clause which made the borrower bound by any assignment or transfer and all consequences thereof in respect of the loan account.
Srei Equipment Finance Limited had sanctioned the credit facility for an amount of Rs. 43,33,810/-, to be repaid in 48 instalments of Rs. 1,18,700/- each. On account of default, a sum of Rs. 44,78,519.77 p. is due and payable by respondent no. 1 as the borrower and the respondent no. 2 as the guarantor. As the borrower was irregular in making the payment of instalment, the credit facility was recalled and demand notice which has been mentioned earlier was issued. It appears that there is also a clause which makes the borrower bound by the assignment. The notice invoking arbitration is on record. Non-payment/default by and from the date of assignment is also 3 available from record. In the prima facie view of the Court, the assignment clause is a part of the agreement.Thus, the arbitration clause also stood assigned. Accordingly,this application has been filed. Reference is made to the decisions of Chloro Controls India Private Limited vs. Severn Trend Water Purification Inc. and ors.reportedin (2013) 1 SCC 641 and Cox & Kings Ltd. vs. SAP India (P) Ltd. reported in (2024) 4 SCC 1. Further questions as to whether a non-signatory can raise a dispute or whether the arbitration clause stood assigned or whether the petitioner has any legal claim against the borrower and the guarantor, shall be decided in the arbitration if such question is raised by the respondents.
Under such circumstances, the Court appoints Mr. Anindya Basu, learned advocate (Mob. No. 9733300151) as the sole arbitrator, to arbitrate the dispute. The sitting of arbitration shall be in Kolkata . This order is subject to compliance of Section 12 of the Arbitration and Conciliation Act, 1996.
Learned arbitrator shall fix his own remuneration as per the schedule of the Act.
AP-COM 769 of 2024 is, accordingly, disposed of.
(SHAMPA SARKAR, J.) TR/